Protecting your Future: Make sure you have a plan for long-term care

Few seniors have the resources to pay for long-term skilled nursing home stays. New York has one of the highest average cost per day rates at these facilities. For most families, those costs are far more than they are able to pay from their own income and savings. That is one reason why we recommend that people look into long...

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By Bonnie Kraham

recordonline.com

By Bonnie Kraham

Posted Jan. 17, 2013 at 2:00 AM

By Bonnie Kraham
Posted Jan. 17, 2013 at 2:00 AM

New York currently does not have a filial responsibility law on the books.

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New York currently does not have a filial responsibility law on the books.

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Few seniors have the resources to pay for long-term skilled nursing home stays. New York has one of the highest average cost per day rates at these facilities. For most families, those costs are far more than they are able to pay from their own income and savings. That is one reason why we recommend that people look into long-term care insurance, or LTCI, to protect assets from nursing home costs. However, LTCI premiums remain too high for many, and then Medicaid is generally used to provide for necessary care.

Some facilities are actually resorting to another option to ensure they are paid for providing care — getting adult children to foot the bill. Recently, the Consumer Voice, one of the nation's leading nursing home resident advocacy groups, published a memo on the use of filial responsibility laws. While enforcement of rules based on these statutes remains relatively rare, some argue that more and more facilities will take a look at pursuing adult children to increase payments.

New York currently does not have a filial responsibility law on the books. Thirty states have these rules including the neighboring states of Connecticut, New Jersey, Massachusetts, Pennsylvania and Vermont. Those with loved ones in facilities in one of those states need to be aware of the possibility of a facility filing suit against an adult child for unpaid nursing home bills.

Each state statute has slightly different rules regarding who exactly can be held accountable and what the nursing home must show in order to recover. In most cases, for example, the long-term care facility must explicitly show that the adult child has the means to provide the necessary financial support. It makes little sense for a court to force an adult child to pay bills for a parent when doing so will make the child destitute.

The most high-profile recent case on this matter came out of Pennsylvania, where a court ordered an adult son to pay a $93,000 nursing home bill. Uniquely, the court determined that it did not matter whether he had any siblings or even whether a Medicaid application was pending. In other words, it was quite an expansive ruling that, if upheld on appeal, suggests that nursing homes have significant leeway in pursuing adult children for payment if they choose.

The best approach is to act as early as possible to make sure assets are protected from nursing home costs. The next best plan, if you don't have adequate long-term care insurance, is the Medicaid Asset Protection Trust.

Bonnie Kraham is an attorney practicing elder law and estate planning with Ettinger Law Firm in the Town of Wallkill. She can be reached at 845-692-8700, ext. 119 or at bkraham@trustlaw.com. This column is intended to provide general information, not legal advice.